The legal landscape in relation to labor and employment law is always changing. New laws in relation to issues like predictive scheduling and paid sick leave are being enacted on a regular basis. As an employer, it’s almost inevitable that you’ll ask yourself at some point, “Do I need a labor lawyer?” It would be impractical and very expensive to hire a lawyer for every little uncertainty, however, you’ll definitely need a labor or employment lawyer to effectively handle certain situations. Make sure you answer and understand the following points when deciding if you need a labor lawyer:
- Labor laws vs. employment laws
- What is the role of a labor attorney?
- How do you know if you need a labor attorney?
- How much should you expect to pay for the services of a labor lawyer?
- What does an employment lawyer do?
- When do you need an employment attorney?
- List of employment attorney’s services
- How to keep your business compliant
In strict legal terms, there can be a difference between labor laws and employment laws. Most people use these words interchangeably and there’s usually no problem. However, it’s important for employers who need the help of a lawyer to understand the difference because failing to know the distinction can leave them at a disadvantage.
Here’s the legal difference between labor laws and employment laws:
- Labor laws
In the strict legal sense, labor laws deal with a narrower area than employment laws. Labor laws involve dealing with issues like collective bargaining negotiation and union organizing in relation to union and management relationships as well as collective bargaining rights. There are a few federal and state laws that oversee labor laws – for example, the National Labor Relations Act (NLRA).
- Employment laws
Employment law is everything else relating to employment that is not classified as labor law. Employment law consists of both state and federal laws that govern issues such as:
- Workers’ compensation
- Wrongful termination
- Scheduling rules
A labor attorney can work for either employers or employees to enter into negotiations or settle disputes. Within the strict legal definition of labor laws, a labor attorney will work with industries that have labor unions, like teaching and law enforcement.
You should contact a labor lawyer in the following circumstances:
- You’re facing the threat of a lawsuit on the grounds of problems like dangerous working conditions, unlawful overtime or wrongful termination.
- There’s an indication that your employees might be going on strike.
- You’re thinking of firing a union worker who has been demonstrating unsatisfactory performance.
Some labor lawyers bill clients on an hourly basis. However, some labor lawyers may accept cases on a contingency basis, where they will take a percentage of any damages awarded. These contingency arrangements are generally only given to employees since they are the ones who will receive a payout from businesses if they win a case. As a business owner, you should get written confirmation of the rates and all chargeable work before agreeing to use the services of a labor lawyer.
If your business isn’t part of a unionized industry, it’s likely that you’ll need an employment lawyer. It’s advisable that you familiarize yourself with crucial employment and labor laws and issues such as:
- Minimum wage, overtime, and misclassification
- Employment background checks
- Discrimination and harassment
Employment lawyers work with employers and employees to give them advice about federal and state laws. They help the party they’re representing either to defend or enforce laws in relation to different aspects of employment. An employment lawyer’s role is varied and could range from helping employers write a handbook to appearing before the court.
According to the global law firm, Norton Rose Fulbright, the respondents of a survey about litigation trends in business spent $4 billion on litigation in 2017. Given the number of lawsuits that are being filed against businesses, it’s highly likely that you’ll need to hire an employment attorney. Although the price of hiring an employment lawyer could be high, the cost may be higher if a court awards damages to an employee who has filed a complaint against your business.
An employment attorney’s service can be used as a preemptive measure to protect your business from litigation. Here are some ways that you could utilize the services of an employment attorney:
- Firing an employee
- Claims and complaints against your business
- Laying employees off
- Review contracts and agreements
- Write or review handbooks and policies
- Dealing a government agency
- Legal papers from an employee
Before you fire an employee
Firing an employee should be done after careful consideration and after seeking legal advice. Even when it has been proven that your employee has taken part in gross misconduct, such as theft, you should still seek legal advice to ensure that you cover all your bases.
Since employment law can be complex, you should deviate on the side of caution and seek advice about areas of the law that you’re unclear about. You should ensure that you apply the same penalties to all employees if their action is the same. Failing to do this can lead to you being sued for discrimination.
Employees don’t always give an indication that they will sue your business after they’ve been fired. Even though the employee may not alert you to the fact that they will pursue legal action, the following could be indications that a lawsuit may be brought against your business and you should seek legal advice from an employment lawyer:
- Your right to fire an employee is limited by a written or oral employment contract.
- The employee has lodged a complaint against your business with a government agency alleging that you failed to comply with the necessary legislation.
- You have cause to believe that the employee can turn violent or engage in other harmful activities against you or your business.
- The employee is part of a protected class, for example, they practice a particular religion or they are pregnant.
- The employee denies the accusation of the act that has led to them being fired.
When an employee makes claims and complaints against your business
When new legislation to protect workers’ rights is enacted, employees are given the option to lodge complaints with the relevant government agency. For example, The New York Fair Work Week predictive scheduling laws give employees the right to file a complaint with the New York Department of Consumer Affairs. Employees can also file an administrative charge at a state level with an agency such as the Equal Employment Opportunity Commission if they feel like they have been discriminated against.
It’s advisable that you take the opportunity to educate yourself as much as possible in relation to the law in dispute. Online guides, like Deputy’s ‘What Employers Need To Know About New York’s Fair Workweek Law’, are valuable if you’re dealing with predictive scheduling issues in the city of New York. While these guides are helpful, they’re not to be taken as legal advice. You should use such guides to give you an informed basis of discussions with your employment lawyer.
In terms of claims and complaints, seek advice from an employment lawyer if:
- The claim that the employee makes can result in your business awarding them huge payouts in terms of damages.
- Some of your other employees have also raised the same issues at work or with an overseeing agency.
- The employee has already hired a lawyer.
- The employee indicates that they will file a lawsuit against your business.
Before you lay employees off
When laying people off, you need to be sure that you’re sticking to the right procedures. You may need to hire an employment lawyer to get advice about discharging your duty at a state and local level. The employment lawyer should inform you about any obligations under legislation, like The Worker Adjustment and Retraining Notification Act, which offers protection to employees who are being laid off.
You may also need to consult with your lawyer about the contents of a general release of claims if you’re offering severance pay. This document is important because it contains information about the employee relinquishing their rights to sue your business for specific reasons. You can advise your employment attorney about what you would like to be included in the general release of claims. The employment attorney will use their expertise to advise you as to whether what you’re asking for is legal.
To review contracts and agreements
An employment lawyer can review your employment contracts and agreements to ensure that all the information is lawful. You may choose to hire an employment lawyer to review all of your contracts and agreements at one time. Your employment lawyer will advise you whether your contracts and agreements:
- Can be enforced in court
- Include the necessary legal terms
- Place more of a burden on you that is required by law
Your employment lawyer may also advise you about which scenarios where different contracts should be used.
To write or review handbooks and policies
Similar to contracts and agreements, the information contained in your handbook and policies have legal implications for your business. Contact an employment lawyer if you’re uncertain about the information contained in your policies and handbook in relation to issues like:
- Sick pay
- Health and safety
Policies and handbooks need to be updated to reflect changes in the law. For example, Austin, Texas, new paid sick leave law places an obligation on employers to include employers’ rights under this law in handbooks.
An employment lawyer can also write your handbook and your policies for you. Given the legal implications of an employee handbook, it can make sense to ask an employment lawyer to compile it for you. The employment lawyer will need your input about provisions that are specific to your company. In this instance, they will be able to advise you whether your suggestions are lawful.
When dealing with a visit from someone from a government agency
If your business is visited by someone from a government agency, your first action should be to contact your employment lawyer. You should politely inform the government agent that you’ll be calling your employment agency and they need to wait until you’ve had the conversation.
The initial contact with government agencies is crucial. You need to make sure that you take all the right steps to protect your business. Although you’ve conducted your business in a lawful way, you still need to protect your interests by seeking advice about what a government agent can and can’t demand from your business.
When an employee serves your business with legal papers
Most employers will immediately seek the services of an employment lawyer if they’re sued by an employee. However, there may be a few employers who believe that they’re equipped to handle this situation on their own. It’s critical to hire an employment lawyer if you’ve been served with papers. Your employment lawyer will let you know the steps you need to take to comply with the court and to protect your business.
All communication after you’ve been served should go through your lawyer to the employee’s lawyer. Don’t attempt to contact the employee to reason with them because any communication without lawyers present can lead you into trouble. Instead of focusing on trying to dissuade your employee from continuing to take legal action, spend the time working with your employment lawyer to file a legal response to the lawsuit.
Keep your business compliant
The key to answering the question, “Do I need a labor or employment lawyer?” should be that you’ll need one at some point in the future. As this is the case, it’s recommended that you build relationships with employment attorneys before crisis hits. You could hire an employment attorney to do small inexpensive jobs to see how they work. Therefore, if a crisis hits, you’ll already have an employment lawyer you trust on speed dial.
In addition to building relationships with employment attorneys, you should also take every step to ensure that your business is compliant with relevant laws. A major aspect of compliance is ensuring that you can provide evidence that you’re obeying the law. This is where workforce management software, like Deputy, can double-up as a compliance tool. The stats and reporting feature enables you to generate reports based on different criteria to quickly demonstrate that you’ve obeyed laws that refer to such issues such as predictive scheduling and paid sick pay. To learn more, schedule a customized demo below to see it in action.